If Porn Isn’t Art, Does It Still Have a Right to Exist?

05.02.12 8:45 AM ET

It's 8 a.m. in downtown Los Angeles, and the 16 people in the jury box at the Edward R. Roybal federal courthouse are watching a film of two women smearing themselves with feces. At least some of them are watching, anyway. One woman is focused intently on wrapping and unwrapping a tendril of hair around her finger. Another, a 40-something woman with a Carol Brady flip, stares poker-faced at the screen. Most of the men just look away.

Across the room, Ira Isaacs, the 61-year-old producer of the film, which is titled Hollywood Scat Amateurs #10, bobs his head along with the music in the opening credits.

In the video, Isaacs speaks to the women from off-camera. "Not so bad after a while, is it?" he says as he hands one a dark spoonful. The women giggle like kids playing with finger paint—as though they can’t quite believe someone, somewhere is getting off on this.

But despite the laughter, the women can’t stifle a gag here and there. One balks at the spoon and shakes her head. That’s more reaction than the jury, now in its second day of screening films, is able to muster. As she ultimately takes the spoon and puts it in her mouth, no one in the jury box bats an eye.

It was Isaacs’s third obscenity trial. His first, in 2008, ended in a mistrial after pornography—including imagery similar to what Isaacs depicts—was found on the presiding federal judge’s personal website. The second, in March, ended in a hung jury. The four films he was on trial for this time included two scat movies Isaacs produced in 2004, and two that he did not produce but did distribute.

When he took the stand last Thursday, his defense was a familiar one.

“Art is what an artist says it is,” Isaacs said. He looked pretty much like what you’d imagine a 60-something pornographer would look like: black suit, black Crocs, a slicked-back black ponytail, and a dyed black goatee with white roots showing. “I see myself as an iconoclast,” he said.

Pornographers facing obscenity prosecutions have relied on the “It’s art” defense for decades, and sometimes with good reason. Filmmakers from the 1970s such as Radley Metzger and the Mitchell Brothers considered themselves artists; there was artistic intent and in some cases, talent.

Isaacs himself minored in art at SUNY New Paltz and has a decent enough grasp of art history, but on the stand he showed only a teenager’s cockiness. His testimony was a hastily stapled term paper of Wiki-arguments linking Marcel Duchamp’s Fountain with Chris Ofili’s controversial elephant-dung Madonna and Kiki Smith’s graphic excretory sculpture.

“What this showed me,” Isaacs testified, hoisting a large photo of Smith’s Tale, “was that feces is respected in the art world.”

He even invoked Beethoven and Picasso as artistic influences. They, too, were ahead of their time, he said.

Despite a flurry of prosecutorial objections and judicial scolding, Isaacs—a former commercial ad man—was able to get “shock artist” and “post-modernism” into the record, though it was never clear if he himself truly believed it. Throughout his testimony, he maintained the same shit-eating grin, if you will, employed by his actresses.

“I’m not saying my work is great,” he concluded. “It’s not.” (It may not even be what it purports to be: there was much debate during the trial over whether the “feces” was in fact a mixture of peanut butter and chocolate.)

But even bad art, Isaacs said, has a right to exist. The problem for him was that this wasn’t the legal question at issue. The legal question was whether he has a right to sell it.

After all, Isaacs isn’t being prosecuted for creating the films, but for distributing them. In other words, his movies are obscene because we ordered them. More specifically, the government did: Department of Justice officials purchased Isaacs’s DVDs online and charged him with a crime only when he shipped them across state lines.

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Those charged with obscenity generally rely on the three-pronged Miller test established by the Supreme Court in 1973, under which a work must have “serious literary, artistic, political or scientific value” to be immune from prosecution. Accordingly, the “serious value” argument is the one on which Isaacs’s entire defense rested.

Put aside the fact that Isaacs didn’t even produce two of the movies in evidence, that his own employees said they never heard him mention the word “art,” never attempted to sell the films as pieces of art, and never sent his tapes to any gallery or exhibition.

The prosecutor, Assistant U.S. Attorney Damon King, didn’t have much trouble poking holes. Recalling one of Isaacs’s demands to his actresses in the film, King asked, “What’s the intellectual interpretation of saying, ‘Tell everyone how much you can’t wait for them to jerk off?’”

One of the Miller prongs asks how the work would seem to “the average person, applying contemporary community standards.” So what, King asked the jury, would your neighbors think of Hollywood Scat Amateurs #10? Would they find it “normal”?

Isaacs had no substantive response beyond his baseline rationale: it’s art because I say it is.

As a documentary filmmaker, I’m essentially a First Amendment absolutist. I believe that Isaacs should have the right to distribute his films, just as the Los Angeles Times has the right to run photos of soldiers playing with body parts. But based on the testimony, the evidence and the language of the law, it would have been hard for me to vote to acquit.

Obviously Hollywood Scat Amateurs #10 was never intended to be art, and that’s the real problem with the art argument: it covers up what’s truly valuable about these films, which is that they allow us to critique of the notion of obscenity itself.

The California obscenity statute defines “prurience” as “a morbid, degrading, unhealthy interest in sex.” But this sells all sexual minorities down the river. Is it more degrading to see a representation of your desire, or be deemed “perverted” by the state? In 2012, should the state still be passing judgment on the consensual sex lives of others?

In the end, the jury pronounced Isaacs guilty on all counts and got home before rush hour. That’s not surprising, given that they’d been instructed not to consider what “a deviant subset” might find normal, or even what they themselves might find normal, but instead to imagine the values of the community at large. Even in Central District of California—the home not only of the nation’s porn industry, but also of bedroom communities from San Luis Obispo to Orange County—that leaves a lot of room for sexual missteps.

Isaacs’s attorney, Roger Diamond, may have failed to argue anything other than “artistic value” in his client’s defense, but in his closing argument, he made a point that had barely surfaced in the trial.

“People watch these movies and know that they’re not alone in the world,” Diamond said. “If people want to buy these movies, they ought to be able to.”

This is the community standard that we should be fighting for: a standard that proclaims the “deviant subset” has the same right to watch what it wants as does any average member of the community, as long as the production itself is not crime. It's a recognition that sexual speech is covered by the First Amendment, regardless of whether we think it has “serious” value.